Seth Waxman, a lawyer for ABC television, pointed to a bare-chested figure of a woman on the Supreme Court chamber’s wall as he argued a potentially landmark case over federal indecency regulations.
“Right over here, Justice Breyer,” he said to laughter. Tuesday’s oral arguments were often interrupted by snickering and laughter as lawyers and justices used specific language, and plenty of euphemisms, to debate the nature of indecent content.
Waxman argued that federal restrictions on indecent content – which he said could include naked statues – are unconstitutionally vague and violate broadcasters’ First Amendment rights.
At issue is whether the indecency regulations, which the Federal Communications Commission uses to enforce standards on the airwaves, are “impermissibly vague,” as an Appeals Court ruled last year. The lower court also said that the commission's rules violate the First and Fifth Amendment rights of broadcasters.
The case centers on the role of traditional content restrictions in an age of almost unlimited media online, on cable, and by satellite. It stems from a decision by Fox and ABC to take the FCC to court after the agency decided to strictly enforce indecency rules in 2004. In Fox’s case, the FCC found that expletives uttered during the 2002 and 2003 Billboard Music Awards were legally “indecent,” but did not impose sanctions. ABC and 45 affiliates were fined after a 2003 episode of NYPD Blue showed a woman’s naked buttocks.
The Supreme Court justices pointedly questioned both sides, but seemed to reserve most of their incredulity for the broadcasters’ lawyers, who argued that free market forces would prevent an explosion of profanity and nudity on broadcast TV.
“There are natural restraints,” Carter Philips, who represented Fox television, told the panel. “You don’t need the FCC any more.” But the increasingly adult content on unregulated cable seems to undermine that argument, Justice Anthony Kennedy said.
The case produced an unusual breakdown, with the Court’s more conservative members expressing skepticism about market forces while more liberal justices noting the seemingly random nature of federal regulations. Sometimes, Justice Elena Kagan remarked, “the policy seems to work that nobody can use dirty words or nudity except Steven Spielberg.” That, Fox, ABC, and other broadcasters argue, is exactly the problem.
The media companies say that the FCC has gone too far in imposing fines for unscripted, “fleeting expletives,” among other things, and is inconsistent in its enforcement.
Chief Justice John Roberts and Justice Samuel Alito questioned the broadcasters’ claim that while broadcast TV shouldn’t be held to a different standard than cable, satellite, or Internet content, radio is different.
Solicitor General Donald Verrilli, who argued the case for the FCC and the Obama administration, said that the rules are based on all types of broadcast, and that radio can’t be singled out. “The circumstances haven’t changed for radio; it’s just as ubiquitous,” he said. “And TV is not less pervasive; it’s just that other media cause harm as well.”
Justices Kennedy and Antonin Scalia both expressed the sentiment that there may be some intrinsic value in holding broadcasters that use public airwaves to a higher standard.
Justice Sonia Sotomayor, who participated in some of the Appeals Court proceedings, recused herself from the case.